Director of Public Prosecutions v Gaffney

[2014] VCC 582

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00316

DIRECTOR OF PUBLIC PROSECUTIONS

v

PADRAIG GAFFNEY

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JUDGE:	CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2014
DATE OF SENTENCE:	6 May 2014
CASE MAY BE CITED AS:	DPP v GAFFNEY
MEDIUM NEUTRAL CITATION:	[2014] VCC 582

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – criminal damage – large quantum of damage – no prior convictions – intoxication – moral culpability – plea of guilty –  remorse – excellent prospects of rehabilitation – strong employment history – general deterrence – offending does not require the imposition of a term of imprisonment – fine imposed – costs

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K Churchill	OPP
For the Accused	Mr S Norton	Robert Stary Lawyers

HIS HONOUR:

1. Padraig Gaffney, you have pleaded guilty to one charge of criminal damage.  The offending occurred on 22 April 2013.  You have no prior convictions.  The charge carries a maximum penalty of 10 years’ imprisonment.  The facts of the case were opened by Ms Churchill and are contained in The Crown Opening, Exhibit A in these proceedings.

1. In brief summary, on 21 April 2013 you were on a visit to Melbourne and staying on the ninth floor of the Fraser Place Hotel with your then-girlfriend.  You were in Melbourne to celebrate your birthday and had planned to propose marriage to your girlfriend.  You had been out drinking before returning to the hotel at about 10:00PM.  You apparently slept before awakening just after midnight and left your room to urinate in the hallway of the hotel.  You entered the fire escape and walked down to the eighth floor.  You turned on the fire tap, causing flooding to eight levels of the hotel and causing extensive damage, including damage to the lifts and electrical wiring.  All floors of the hotel were evacuated and the Metropolitan Fire Brigade called as a result of your actions.  At about 12.22AM, you exited the stairwell on level 10, naked and wet before returning to your room on level nine.  Your actions were captured on CCTV footage.  You were arrested by police in the early hours of 23 April.  You said that you had no recollection of the period of time between arriving back at the hotel and when the Fire Brigade was in attendance. The damage directly attributable to your actions amounted to $508,648.63. 

1. Mr Norton, who appeared for you said you were born in Roscommon, Ireland, the youngest of six siblings.  You are now aged 29 years and were 28 at the time of the offending.  You achieved well at school, completing your Higher School Certificate in 2002, during which time you also undertook an apprenticeship in cabinet making which you completed in 2004.  You came to Queensland for your brother’s wedding before relocating there.  Your parents visit regularly from Ireland.  In addition to having a close and supportive relationship with family members you contribute regularly to the local community.  I was told that you assisted your sister following a difficult marriage breakdown and that, in the aftermath of the Queensland floods, you invited neighbours into your house.  I was also told that you organised for your employer to donate equipment to assist in flood clean up.  You have an excellent work history and have undertaken relevant additional training in the years since completing your apprenticeship.  You are currently working at McNab Constructions as a regional manager responsible for safety systems at seven worksites spread over 400 square kilometres.  It is clear from reading the bundle of references that was tendered, Exhibit 2, and the letter of apology that you wrote, Exhibit 3, that you are viewed by your family and peers as a hard working, decent and humble person.

1. On your behalf, Mr Norton submitted that I take into account the following matters by way of mitigation:

(a)     You were heavily intoxicated at the time of your offending and unable to form any malicious intent;

(b)     You did not intend the extent of the damage caused and have little or no memory of the events surrounding the offending;

(c)     You have no prior convictions and are otherwise a person of good character and this offending is out of character;

(d)     You have an excellent employment history and excellent prospects for rehabilitation;

(e)     You have the support of family and friends;

(f)     You pleaded guilty at a relatively early stage in the proceedings, indicative of remorse and an acceptance of responsibility; and

(g)     You are extremely embarrassed and ashamed at your behaviour.

1. The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

1. Criminal damage offences vary widely in their gravity, depending on the circumstances in which they are committed.  The common link between different example of criminal damage is the damage caused to property.  In your case, substantial damage was caused to the hotel.  Ordinarily, sentences imposed for criminal damage attach significance to general deterrence in order to deter others from committing like offences.  The particular circumstances of your offending are such that I do not attach great weight to general deterrence. I agree with your counsel’s submission that you did not behave with any malice and had no intention to cause damage on the scale sustained here.  In sentencing in cases where there are unintended consequences of a catastrophic dimension, care must be taken to ensure that the seriousness of the consequences does not swamp all other sentencing considerations.

1. You committed this offence whilst heavily intoxicated.  Intoxication may aggravate or mitigate offending behaviour or have no bearing on it whatsoever.  Much depends on the nature of the offending, the surrounding circumstances and the personal circumstances of the offender.  As Young CJ said in Attorney-General v Davis (CCA, unreported, 9 May 1980) at page 7:

Intoxication is, of course, not an excuse for crime.  Sometimes, however, it does reduce the culpability of a particular offender.  I think that it does in this case.  There was no premeditation in this offence.  It appears to have been a stupid act committed on the spur of the moment.  I do not think the respondent would have done it if he had not had too much to drink.

1. This passage could very easily be describing your offending – unpremeditated, stupid, and not an act you would have contemplated had you been sober.  For this reason, I consider your state of intoxication not to be an aggravating feature and consider it a factor that goes to reducing your moral culpability.

1. I take into account the fact that you have pleaded guilty.  Your sentence is less severe than what I would ordinarily have imposed had you pleaded not guilty.  Your plea saves time, expense and the need for witnesses to give evidence and is reflective of remorse.  Although you had a contested committal hearing it was limited to contesting the quantum of damages alleged.

1. I take into account that you have no prior convictions and nothing subsequent and I am satisfied that you are otherwise a person of very good character.  You are genuinely remorseful for what you have done and the shame it has brought to you and your family.  You have strong support from your family and, in particular, your employer, who has stood by you and to whom you made full disclosure. You have made valuable voluntary contributions to your community in the past.  I am satisfied that your prospects of rehabilitation are excellent.  For all these reasons, I have come to the view that your offending does not warrant a custodial sentence and I propose to impose a monetary penalty.  However, I cannot accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances.  Firstly, there is no evidence that the recording of a conviction as opposed to the finding of guilt will impact more adversely on your economic or employment prospects.  Secondly, your actions caused significant damage to the hotel and for that reason your offending can be viewed as serious.  The additional punishment of having a conviction recorded is called for in your case.

1. Mr Gaffney, please stand.  On the charge of criminal damage, you are convicted and fined $10,000.00.  I grant a stay of 6 months to 6 November 2014 for payment of that fine.  Should you have difficulty paying the fine I have imposed, you have the option to pay the fine by instalments and you should speak to your counsel about that following the sentence.

1. Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 18 months’ imprisonment with a non-parole period of 12 months.

1. You can step out of the dock thank you, Mr Gaffney.

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